I didn't want to Get Steamed

I was doing perfectly fine this morning, minding my own business. Then I read an article by Ezra Kline entitled Medical Malpractice Costs. Now I am all worked up, in a lather, in a tizzy, and beside myself.

I didn't ask for that.

Let me first say that malpractice reform is not one of my usual soap boxes. The reasons for my non-attention to this issue are as follows:

As a primary care physician, malpractice insurance is not a major line-item on my budget

Neither I nor physicians in my practice have ever been sued

I know that medical care is far from perfect and don't want to give the impression I think otherwise

I don't want bad physicians to continue practicing medicine, and hope that they will be held accountable for their poor care quality. (Yes, like most physicians I have seen some very bad doctors. Most docs can tell you who they wouldn't send their enemies to.)

I think that this issue has been over-emphasized, as it is a central issue for the specialists (who have controlled the game up to now). The AMA and other societies have gone after tort reform in lieu of making things fair for primary care. That frustrates me.

So the fact that an article about malpractice got my goat is quite significant.

In this article, Klein starts out by citing (word police: I got the spelling right this time) articles that question the validity of doctors' arguments for tort reform. The first, an article by David Leonhardt makes the point that despite the cost to the system (estimated at 3% by him, although most estimates I have seen are more near 10%), malpractice cases are not indicative of the actual prevalence of malpractice:

At the same time, though, the current system appears to treat actual malpractice too lightly. Trials may get a lot of attention, but they are the exception. Far more common are errors that never lead to any action.

After reviewing thousands of patient records, medical researchers have estimated that only 2 to 3 percent of cases of medical negligence lead to a malpractice claim. For every notorious error — the teenager who died in North Carolina after being given the wrong blood type, the 39-year-old Massachusetts mother killed by a chemotherapy overdose, the newborn twins (children of the actor Dennis Quaid) given too much blood thinner — there are dozens more. You never hear about these other cases.

So we have a malpractice system that, while not as bad as some critics suggest, is expensive in all the wrong way

While I do agree that most true malpractice does not lead to claims, Mr. Leonhardt (at least in this citation) doesn't address the following:

This is a legal system where someone is innocent until proven guilty. Some negligence taken to trial doesn't result in a claim because the evidence was not conclusive.

Studies have also shown only 17% of malpractice claims appear to involve actual injury. (Localio AR, Lawthers AG, Brennan TA, et al. N Engl J Med 1991;325:245-251). This means that the majority of those found guilty are probably innocent.

I think Mr. Leonhardt's case is pretty weak, but that is not what got my eggs all scrambled.

The second article cited is by Kevin Drum, who argues that most patients don't even know medical malpractice has occurred, and that filing a lawsuit is one of the only ways to get at the truth. He goes on to criticize those favoring malpractice reform:

We could fix this pretty easily by making it much easier for patients to see the records of their own cases. If we did, that would cut down on "frivolous" lawsuits and it would increase the number of justified lawsuits. That would be fairer for everyone, but it probably wouldn't cut medical malpractice costs. It would increase them. That's why the medmal warriors never talk about this. They like the idea of cutting back on frivolous suits, but they're much less keen on admitting that there's also a lot of genuine malpractice that goes completely unnoticed.

This article also fails to note the high percentage of lawsuits that are frivolous (Why is the word frivolous in quotes, but the word justified is not?). It also seems to imply that patients have no access to their records, which isn't the case in most situations. It is only when the lawsuit is filed that the access to the records is restricted (from both patients and doctors, by the way).

But this too is not what toasted my tacos.

What really bothered me was the commentary that followed by Mr. Klein:

The sad irony of the malpractice system is that it has led doctors and hospitals to be much less transparent with their data, which has made it harder to find out when things go wrong, which has made it harder to put in place systems that keep things from going wrong. But the best way to reduce malpractice costs would be to reduce malpractice.

The problem isn't in courtrooms so much as on the operating table. But because it's doctors who are angry about malpractice suits, most of the fixes are from their perspective. What we need is malpractice reform from the patient's perspective. That wouldn't be the system we have now, or mere caps on damages: It would be serious work and investment in better practices.

Am I reading this wrong? Is he saying that to reduce malpractice lawsuits we should simply stop doing malpractice? Hmmm. That sounds pretty radical.

While we are at it, why don't we set up ethics guidelines for politicians so we can get rid of corruption in Washington DC? Or how about giving people guidelines on eating well so that there is no more obesity? Maybe the UN can set up guidelines for human behavior so that terrorists stop killing people.

Can anyone tell me why we never thought of this???

I expect better from Ezra. I follow his column daily and while I may not always agree with him, he's a thoughtful advocate for what he represents. But the connotation of what he and the other two gentlemen are saying really boils my macaroni. Really.

Why am I so worked-up?

The first thing (that flushes my goldfish) is that it implies that doctors are not anti-negligence. All of these articles seem to suggest that there is a hush-hush conspiracy among doctors to protect lousy doctors from lawsuits. This is not the case. Nobody is complaining that doctors who give too much chemotherapy or cut off the wrong leg are getting sued. Tort reform is not about that. What makes doctors so frustrated about the current medical malpractice system is that doctors are being sued for bad outcomes, not negligence.

Please get rid of the bad doctors. The real problem with the system is that so many good doctors are sued for situations that are not cases of malpractice, that the really bad doctors can hide in this large group. Simply having a lawsuit against you does not mean you are a bad doctor. Most of the time it just means you had a bad outcome with the wrong person. Getting rid of frivolous lawsuits will make it more obvious who is really committing malpractice.

The second implication that tangles my yo-yo is that doctors who are angry about malpractice suits are somehow anti-patient. We spend our lives working to do what is best from the patient's perspective. I don't know any doctors who want to harm patients and get away with it. No, you can really want what is best for the patient and still think that our system is bad. It is a false-dichotomy.

But the real thing that put ricotta in my pasta is the implication that doctors are idiots. I've written about my frustration with doctors who think the best way to get patients to quit smoking is to inform them that it is harmful. I've also talked about how patronizing it is to educate an obese person of the fact that they need to lose weight. There are no smokers I have met that think it is healthy. There are no obese people I know of who don't realize they should lose weight. It is not the lack of education or stupidity of the smokers and overweight that is the cause of the problem. It is far more complex than that.

Ezra, doctors do realize that cutting down on malpractice is good and harming people is bad. Most bad medicine is not done because the doctor thought it was a good idea; it happens because of being rushed, tired, not having good information, having a bad day, getting lazy, being over-confident, or not communicating well with the patient. In short, it happens because doctors are normal people who doctor for a living. Saying we should focus on "best practices" is ridiculously simplistic, and seems to imply that some docs believe in "mediocre practices" or "lousy practices."

Yes, we should have a system that identifies the low-quality doctors and either improves their care or gets rid of them. Yes, patients should get the best possible care. Yes, people harmed by medical negligence deserve to be compensated.

But simply saying doctors should stop messing up is not the solution, and it is not what the tort-reform debate is all about.